Citation Nr: 0407901
Decision Date: 03/26/04 Archive Date: 04/01/04
DOCKET NO. 02-09 119 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for the cause of the
veteran's death.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Michael Prem, Associate Counsel
INTRODUCTION
The veteran served on active duty from September 1966 to July
1968.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a June 1999 rating decision issued by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas, which denied service connection for the cause of
the veteran's death.
FINDINGS OF FACT
1. The immediate cause of the veteran's death was an
intracranial hemorrhage due to a subdural hematoma.
2. There are no medical records recorded during service
reflecting any symptoms, diagnoses, or treatment for any head
injury, to include an intracranial hemorrhage or subdural
hematoma.
3. Service connection was not in effect for any disability
during the veteran's lifetime.
4. The preponderance of the evidence is against a causal
relationship between the veteran's fatal intracranial
hemorrhage or subdural hematoma and any incident of service.
CONCLUSION OF LAW
Service connection for the veteran's cause of death is not
warranted. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.312, 3.159 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
There has been a significant change in the law during the
pendency of this claim with the enactment of the Veterans
Claims Assistance Act of 2000 (the VCAA), Pub. L. No. 106-
475, 114 Stat. 2096 (2000), codified at 38 U.S.C.A. §§ 5102,
5103, 5103A, 5107 (West 2002). VA has issued final
regulations to implement these statutory changes. See C.F.R.
§§ 3.102, 3.159 and 3.326(a) (2003). These new provisions
redefine the obligations of VA with respect to the duty to
assist and include an enhanced duty to notify a claimant as
to the information and evidence necessary to substantiate a
claim for VA benefits. In this case, the Board finds that
VA's duties to the veteran under the VCAA have been
fulfilled.
First, VA has a duty to notify the veteran of any information
and evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102 and 5103. The Board concludes that the
discussions in the June 1999 rating decision, the May 2002
Statement of the Case, the November 2003 Supplemental
Statement of the Case, and letters sent to the claimant by
the RO, adequately informed her of the information and
evidence needed to substantiate her claim for service
connection for the veteran's cause of death, and complied
with VA's notification requirements. The Statement of the
Case and Supplemental Statement of the Case set forth the
laws and regulations applicable to the appellant's claim.
Further, letters from the RO to the claimant dated March
2001, June 2001, and February 2004 informed her of the types
of evidence that would substantiate her claim; that she could
obtain and submit private evidence in support of her claim;
and that she could have the RO obtain VA and private evidence
if she completed the appropriate medical releases for any
private evidence she wanted the RO to obtain. In sum, the
claimant was notified and aware of the evidence needed to
substantiate her claim and the avenues through which she
might obtain such evidence, and of the allocation of
responsibilities between herself and VA in obtaining such
evidence. See Quartuccio v. Principi, 16 Vet. App. 183
(2002).
In a recent decision, Pelegrini v. Principi, 17 Vet. App. 412
(2004), the Court of Appeals for Veterans' Claims (Court)
held that VCAA notice must be provided to a claimant before
the " initial unfavorable [agency of original jurisdiction
(AOJ)] decision on a service-connection claim." The Court
also held that the duty to notify provisions required VA to
request or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim, or
something to the effect that the claimant should "give us
everything you've got pertaining to your claim(s)." VCAA
notice was not provided to the claimant before the RO
decision that is the subject of this appeal. However, the RO
decision that is the subject of this appeal was in June 1999,
prior to the enactment of VCAA. The RO obviously could not
inform the claimant of law that did not exist. Moreover,
while the Court did not address whether, and, if so, how, the
Secretary can properly cure a defect in the timing of the
notice, it did leave open the possibility that a notice error
of this kind may be non-prejudicial to a claimant.
The Court in Pelegrini found, on the one hand, that the
failure to provide the notice until after a claimant has
already received an initial unfavorable AOJ determination,
i.e., a denial of the claim, would largely nullify the
purpose of the notice and, as such, prejudice the claimant by
forcing him or her to overcome an adverse decision, as well
as substantially impair the orderly sequence of claims
development and adjudication. On the other hand, the Court
acknowledged that the Secretary could show that the lack of a
pre-AOJ decision notice was not prejudicial to the appellant.
Id. ("The Secretary has failed to demonstrate that, in this
case, lack of such a pre-AOJ-decision notice was not
prejudicial to the appellant.")
In light of these two findings on prejudice, the Board finds
that the Court in Pelegrini has left open the possibility of
a notice error being found to be non-prejudicial to a
claimant. To find otherwise would require the Board to
remand every case for the purpose of having the AOJ provide a
pre-initial adjudication notice. The only way the AOJ could
provide such a notice, however, would be to vacate all prior
adjudications, as well as to nullify the notice of
disagreement and substantive appeal that were filed by the
appellant to perfect the appeal to the Board. This would be
an absurd result, and as such it is not a reasonable
construction of section 5103(a). There is no basis for
concluding that harmful error occurs simply because a
claimant receives VCAA notice after an initial adverse
adjudication.
Moreover, while strictly following the express holding in
Pelegrini would require the entire rating process to be
reinitiated when notice was not provided prior to the first
agency adjudication, this could not have been the intention
of the Court, otherwise it would not have taken "due account
of the rule of prejudicial error" in reviewing the Board's
decision. See 38 U.S.C. § 7261(b)(2); see also Conway v.
Principi, No. 03-7072 (Fed. Cir. Jan. 7, 2004) (There is no
implicit exemption for the notice requirements contained in
38 U.S.C. § 5103(a) from the general statutory command set
forth in section 7261(b)(2) that the Veterans Claims Court
shall "take due account of the rule of prejudicial error.")
In reviewing AOJ determination on appeal, the Board is
required to review the evidence of record on a de novo basis
and without providing any deference to the AOJ's decision.
As provided by 38 U.S.C. § 7104(a), all questions in a matter
which under 38 U.S.C. § 511(a) are subject to decision by the
Secretary shall be subject to one review on appeal to the
Secretary, and such final decisions are made by the Board.
Because the Board makes the final decision on behalf of the
Secretary with respect to claims for veterans benefits, it is
entirely appropriate for the Board to consider whether the
failure to provide a pre-AOJ initial adjudication constitutes
harmless error, especially since an AOJ determination that is
"affirmed" by the Board is subsumed by the appellate
decision and becomes the single and sole decision of the
Secretary in the matter under consideration. See 38 C.F.R.
§ 20.1104. There simply is no "adverse determination," as
discussed by the Court in Pelegrini, for the appellant to
overcome. Similarly, a claimant is not compelled under
38 U.S.C. § 5108 to proffer new and material evidence simply
because an AOJ decision is appealed to the Board. Rather, it
is only after a decision of either the AOJ or the Board
becomes final that a claimant has to surmount the reopening
hurdle.
All the VCAA requires is that the duty to notify is
satisfied, and that claimants be given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard v. Brown, 4 Vet. App. 384
(1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also
38 C.F.R. § 20.1102 (harmless error).
Here, the Board finds that VCAA was not in existence at the
time of the June 1999 RO decision, notice was provided by the
AOJ prior to the transfer and certification of the
appellant's case to the Board, and the content of the notice
fully complied with the requirements of 38 U.S.C. § 5103(a)
and 38 C.F.R. § 3.159(b). After the notice was provided, the
claimant was provided with every opportunity to submit
evidence and argument in support of her claim, and to respond
to VA notices.
Therefore, not withstanding Pelegrini, to decide the appeal
would not be prejudicial error to the claimant.
The Court's decision in Pelegrini also held, in part, that a
VCAA notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R.
§ 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This new "fourth element"
of the notice requirement comes from the language of
38 C.F.R. § 3.159(b)(1).
In this case, although the VCAA notice letter that was
provided to the appellant does not contain the "fourth
element," the Board finds that the appellant was otherwise
fully notified of the need to give to VA any evidence
pertaining to her claim. In its VCAA notice letters,
Statement of the Case, and Supplemental Statement of the
Case, the RO informed the claimant of the evidence already of
record and requested that she inform VA of any additional
information or evidence that she wanted VA to obtain. In a
letter informing her that her appeal had been certified to
the Board, the RO informed her that she could submit
additional evidence concerning her appeal within 90 days of
the date of the letter, or the date that the Board
promulgated a decision in her case, whichever came first.
As noted above, VCAA only requires that the duty to notify is
satisfied, and that claimants are given the opportunity to
submit information and evidence in support of their claims.
Once this has been accomplished, all due process concerns
have been satisfied. See Bernard, supra; see also 38 C.F.R.
§ 20.1102 (harmless error). In this case, because each of
the four content requirements of a VCAA notice has been fully
satisfied, any error in not providing a single notice to the
appellant covering all content requirements is harmless
error. Moreover, in a recent opinion, VA General Counsel
held that the Court of Appeals for Veteran's Claims'
statement in Pelegrini that sections 5103(a) and 3.159(b)(1)
require VA to include such a request as part of the notice
provided to a claimant under those provisions is obiter
dictum and is not binding on VA. VA General Counsel further
noted that section 5103(a) does not require VA to seek
evidence from a claimant other than that identified by VA as
necessary to substantiate the claim. See VAOPGCPREC 1-2004.
VA also has a duty to assist the claimant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A. The RO has obtained the veteran's service medical
records. In addition, as noted above, the RO contacted the
claimant by March 2001, June 2001, and February 2004 letters
and asked her to identify all medical providers who treated
the veteran for an intracranial hemorrhage or subdural
hematoma.
The veteran's terminal hospital records are not on file. In
March 2001, the RO sent the claimant a VCAA letter in which
it requested her to sign an "Authorization and Release of
Information" form for Baylor Hospital (where the veteran
died). The appellant failed to respond to the letter. A
second request was made in the form of another VCAA letter
dated June 2001. Again, there was no response. The RO noted
in the May 2002 Statement of the Case that the claimant
failed to respond to its requests for an authorization and
release form. In October 2002, the appellant submitted a
Statement in Support of the Claim (VA Form 21-4138) in which
she stated that she was submitting the veteran's records from
Baylor Medical Center. However, the records that she
submitted were not the records of the veteran, but of someone
else with the same last name (the date of birth and the
social security numbers were not those of the veteran).
Service connection was not in effect for any disability
during the veteran's lifetime; the veteran died of an
intracranial hemorrhage due to a subdural hematoma; there is
no medical evidence of an in-service head injury, and there
is medical evidence of post-service head trauma. Under
these circumstances, the Board finds there is no further duty
to obtain the terminal hospital records.
The Board has considered whether there is a duty to provide a
medical opinion. However, in the absence of any relevant
findings recorded in the service medical records, such as a
head injury, any opinion at this point would be based upon
pure speculation. That is, there is no abnormal finding in
the service medical records for a clinician to link the fatal
intracranial hemorrhage or subdural hematoma to. Moreover,
there is medical evidence of a post-service head injury.
Under these circumstances, the Board finds that there is no
duty to provide a medical opinion. 38 U.S.C.A. § 5103A(d);
38 C.F.R. § 3.159(c)(4).
As VA has fulfilled the duty to notify and assist, the Board
finds that it can consider the merits of this appeal without
prejudice to the claimant. Bernard, supra.
The Board also notes that in a decision promulgated on
September 22, 2003, Paralyzed Veterans of America (PVA) v.
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir.
2003), the United States Court of Appeals for the Federal
Circuit (Federal Circuit) invalidated the 30-day response
period contained in 38 C.F.R. § 3.159(b)(1) as inconsistent
with 38 U.S.C.§ 5103(b)(1). The Federal Circuit made a
conclusion similar to the one reached in Disabled Am.
Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339,
1348 (Fed. Cir. 2003). The Federal Circuit found that the
30-day period provided in § 3.159(b)(1) to respond to a VCAA
duty to notify is misleading and detrimental to claimants
whose claims are prematurely denied short of the statutory
one-year period provided for response. However, the recently
enacted Veterans Benefits Act of 2003 permits VA to
adjudicate a claim within a year of receipt of the claim.
The provision is retroactive to the date of the VCAA,
November 9, 2000. See Veterans Benefits Act of 2003, Pub. L.
No. 108-183, § ___, 117 Stat. 2651, ___ (Dec. 16, 2003).
Background
The death of the appellant's late husband was caused by an
intracranial hemorrhage due to subdural hematoma. It is the
appellant's contention that her husband's death was linked to
his exposure to Agent Orange while in service. She has also
alleged that her husband had prostate cancer that contributed
to his death, and that his prostate cancer was also causally
linked to his exposure to Agent Orange.
The veteran began active service in September 1966, and
served as a supply clerk in Vietnam from June 1967 to July
1968. There are no medical records recorded during service
that reflect any symptoms, diagnoses, or treatment for any
head injury or residuals of head trauma, to include an
intracranial hemorrhage or subdural hematoma.
The first relevant post-service medical records are dated
June 1980. D.H. treated the veteran at Garland Medical
Hospital. The initial report states that the veteran was
struck on the head with a bottle in May 1980, and that he
experiences uncontrolled seizures. In July 1981 the veteran
was admitted to the hospital. D. H. noted that the veteran
underwent a CAT scan, which was negative. EEGs were
essentially negative. The veteran had a normal brain scan
with normal brain flow study. He also had no seizure
activity during the course of his weeklong hospitalization.
He was diagnosed with psychomotor seizure disorder.
In January 1982, the veteran filed a claim for service
connection for headaches, a head injury, and for exposure to
Agent Orange. A June 1979 report revealed that the veteran
experienced mild exposure to Agent Orange over the course of
13 months, but showed no residuals of it. The veteran was
scheduled for a VA examination but he failed to appear for
it. In its April 1982 rating decision, the RO denied service
connection for residuals of a head injury and exposure to
Agent Orange.
The veteran was admitted to the Neurology Service Department
of the VA Hospital for control of his seizure disorder in
January 1982. He was later admitted to the Hillside Medical
Center in July 1982, following a paranoid delusion and
hallucinations. He believed that everyone was trying to kill
him and that the medical personnel were poisoning his
medicine. The clinician noted that the veteran had not
worked in over a year due to the persistence of his seizures.
He also noted that the veteran had a problem with alcohol
abuse.
The veteran underwent a psychiatric examination in January
1990 and was diagnosed with schizophrenia, a seizure
disorder, and alcohol abuse.
The veteran filed a claim for compensation in May 1990 for a
psychomotor seizure disorder, acute schizophrenia, lack of
sex drive, high blood pressure, and delusions. The RO denied
the claims in an October 1990 rating decision.
The veteran was first diagnosed with a subdural hematoma in
June 1992. Dallas County hospital reported that the claimant
found the veteran down in the house and he was unresponsive.
Upon examination, he had a 2 c.m. laceration over his left
brow. He underwent a frontotemporal craniotomy in order to
evacuate the subdural hematoma.
In March 1997, the RO denied a claim for service connection
for the veteran's hematoma because there was no record of
treatment for it while in service or within the 12-month
presumptive period following service.
A certificate of death shows that the veteran died in May
1999 due to an intracranial hemorrhage secondary to a
subdural hematoma.
The claimant filed her claim for service connection for the
veteran's death in May 1999. In the claim, she stated,
"Billy had received a letter from Agent Orange. Something
in his files may be considered service connected. He
suffered from impotence."
The RO denied the claim in June 1999 noting that there was no
evidence in the service medical records that the veteran's
intracranial hemorrhage and subdural hematoma were linked to
service. It also noted that service connection based on
exposure to herbicides is only warranted for those conditions
enumerated in 38 C.F.R. 3.309(e). Intracranial hemorrhage,
subdural hematoma, and impotence are not conditions that have
been linked to exposure to herbicides.
The claimant filed her notice of Disagreement in April 2000.
In it, she states that prostrate cancer was the cause of the
veteran's impotence.
In March 2001, the RO sent the claimant a VCAA letter in
which it requested the claimant to sign an "Authorization
and Release of Information" form for Baylor Hospital (where
the veteran died). The claimant failed to respond to the
letter. A second request was made in the form of another
VCAA letter dated June 2001. Again, there was no response.
The RO noted in the May 2002 Statement of the Case that the
claimant had alleged that the veteran had prostate cancer.
It also noted that the claimant failed to respond to its
requests for an authorization and release form. As a result,
it could not obtain the veteran's final hospital records to
determine if the veteran was diagnosed with prostate cancer.
In October 2002, the claimant submitted a Statement in
Support of the Claim (VA Form 21-4138) in which she stated
that she was submitting the veteran's records from Baylor
Medical Center. However, the records that she submitted were
not the records of the veteran, but of someone else with the
same last name (the date of birth and the social security
numbers were not those of the veteran).
Laws and Regulations
Service connection may be granted for a disability resulting
from personal injury suffered or disease contracted or
aggravated in active military service. 38 U.S.C.A. §§ 1110.
Service connection may also be granted for any disease
diagnosed after discharge, when all of the evidence
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
A veteran who, during active military, naval, or air service,
served in the Republic of Vietnam during the Vietnam era,
shall be presumed to have been exposed during such service to
a herbicide agent, unless there is affirmative evidence to
establish that the veteran was not exposed to any such agent
during that service. The last date on which such a veteran
shall be presumed to have been exposed to a herbicide agent
shall be the last date on which he or she served in the
Republic of Vietnam during the Vietnam era. "Service in the
Republic of Vietnam" includes service in the waters offshore
and service in other locations if the conditions of service
involved duty or visitation in the Republic of Vietnam. 38
C.F.R. § 3.307(a)(6)(iii).
If a veteran was exposed to a herbicide agent during active
military, naval, or air service, the following diseases shall
be service-connected if the requirements of 38 U.S.C.A. §
1116; 38 C.F.R. § 3.307(a)(6)(iii) are met, even though there
is no record of such disease during service, provided further
that the rebuttable presumption provisions of 38 U.S.C.A. §
1113; 38 C.F.R. § 3.307(d) are also satisfied: chloracne or
other acneform diseases consistent with chloracne, Type 2
diabetes mellitus, Hodgkin's disease, multiple myeloma, non-
Hodgkin's lymphoma, acute and subacute peripheral neuropathy,
porphyria cutanea tarda, prostate cancer, respiratory cancers
(cancer of the lung, bronchus, larynx, or trachea), and soft-
tissue sarcomas (other than osteosarcoma, chondrosarcoma,
Kaposi's sarcoma, or mesothelioma). 38 C.F.R. § 3.309(e).
For purposes of this section, the term acute and subacute
peripheral neuropathy means transient peripheral neuropathy
that appears within weeks or months of exposure to a
herbicide agent and resolves within two years of date of
onset. 38 C.F.R. § 3.309(e), Note 2.
The diseases listed at 38 C.F.R. § 3.309(e) shall have become
manifest to a degree of 10 percent or more at any time after
service, except that chloracne or other acneform disease
consistent with chloracne and porphyria cutanea tarda shall
have become manifest to a degree of 10 percent or more within
one year, and respiratory cancers within 30 years, after the
last date on which the veteran was exposed to an herbicide
agent during active military, naval, or air service. 38
C.F.R. § 3.307(a)(6)(ii).
Notwithstanding the foregoing presumption provisions, which
arose out of the Veteran's Dioxin and Radiation Exposure
Compensation Standards Act, Public Law No. 98- 542, § 5, 98
Stat. 2725, 2727-29 (1984), and the Agent Orange Act of 1991,
Public Law No. 102-4, § 2, 105 Stat. 11 (1991), the United
States Court of Appeals for the Federal Circuit has
determined that a claimant is not precluded from establishing
service connection with proof of direct causation. Combee v.
Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994); Ramey v. Brown, 9
Vet. App. 40, 44 (1996), aff'd sub nom. Ramey v. Gober, 120
F.3d 1239 (Fed. Cir. 1997), cert. denied, 118 S. Ct. 1171
(1998). See Brock v. Brown, 10 Vet. App. 155, 160-61 (1997).
Thus, presumption is not the sole method for showing
causation.
To establish service connection for the cause of the
veteran's death, the evidence must show that the disability
that was incurred in or aggravated by service either caused
or contributed substantially or materially to the cause of
death. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312.
For a service connected disability to be the cause of death,
it must singly or with some other condition be the immediate
or underlying cause, or be etiologically related. For a
service connected disability to constitute a contributory
cause, it is not sufficient to show that it casually shared
in producing death, but it must be shown that there was a
causal connection. Id.
The standard of proof to be applied in decisions on claims
for veterans' benefits is set forth in 38 U.S.C. § 5107 (West
2002). A veteran is entitled to the benefit of the doubt
when there is an approximate balance of positive and negative
evidence. See also, 38 C.F.R. § 3.102 (2002). When a veteran
seeks benefits and the evidence is in relative equipoise, the
veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49
(1990). The preponderance of the evidence must be against
the claim for benefits to be denied. See Alemany v. Brown, 9
Vet. App. 518 (1996).
Analysis
To establish service connection for the cause of the
veteran's death, evidence must be presented which in some
fashion links the fatal disease to a period of military
service or an already service-connected disability. See 38
U.S.C.A. §§ 1110, 1310 (West 2002); 38 C.F.R. §§ 3.303,
3.310, 3.312 (2003); Ruiz v. Gober, 10 Vet. App. 352 (1997).
In short, the evidence must show that a service-connected
disability was either the principal cause or a contributory
cause of death. For a service-connected disability to be the
principal (primary) cause of death, it must singly or with
some other condition be the immediate or underlying cause or
be etiologically related. For a service-connected disability
to constitute a contributory cause it must contribute
substantially or materially; it is not sufficient to show
that it casually shared in producing death, but rather it
must be shown that there was a causal connection. 38
U.S.C.A. § 1310; 38 C.F.R. § 3.312; see also Gabrielson v.
Brown, 7 Vet. App. 36, 39 (1994).
Upon review of the evidentiary record, the Board finds that
it is clear that the veteran served in Vietnam during the
Vietnam era. Therefore, he is entitled to a presumption of
exposure to herbicide agents. The medical record, however,
shows that the cause of the veteran's death was not a
condition enumerated as a presumptive disability.
Specifically, the veteran's death certificate lists the cause
of the veteran's death as an intracranial hemorrhage due to a
subdural hematoma. No such presumption exists for
intracranial hemorrhages and subdural hematomas. 38 C.F.R.
3.309(e).
In the absence of the presumption, the medical evidence must
show that the cause of death was causally related to service.
Combee, supra. In this case, there is no evidence that the
veteran had an intracranial hemorrhage or subdural hematomas
during service, nor is there any contemporaneously recorded
evidence of a head injury while on active duty. To the
contrary, the evidence clearly indicates that the veteran
first had complaints of a head injury in May 1980. D. H.'s
medical records show that the post-service head injury was
the result of being struck on the head with a bottle. As a
result, he began experiencing uncontrollable seizures. He
was subsequently treated for delusions, hallucinations, and
schizophrenia.
The medical records of the Dallas County Hospital show that
the veteran was not diagnosed with a subdural hematoma until
June 1992. The condition was the result of a fall in which
he sustained a 2 c.m. laceration over his left brow. Thus,
there are no medical records recorded during service
reflecting any symptoms, diagnoses, or treatment for any head
injury, to include an intracranial hemorrhage or subdural
hematoma, service connection was not in effect for any
disability during the veteran's lifetime, and the
preponderance of the evidence is against a causal
relationship between the veteran's fatal intracranial
hemorrhage or subdural hematoma and any incident of service.
The Board acknowledges the claimant's assertion that the
veteran also suffered from prostate cancer. If shown, a
diagnosis of prostate cancer would be presumptively service
connected pursuant to 38 C.F.R. 3.309(e). However, the Board
finds that no evidence has been produced to support such a
diagnosis. The claimant has failed to respond to multiple
attempts to acquire an authorization and release form, so
that the RO could obtain the veteran's terminal hospital
records from Baylor Medical Center. Instead, the claimant
offered to send them to the Board herself, only to produce
someone else's medical records.
The Board further notes that even if there were a diagnosis
of prostate cancer, and even though it would have been
presumptively linked to service, there is still no evidence
that the prostate cancer contributed to the veteran's death.
For these reasons, service connection for the cause of the
veteran's death is not warranted. As the preponderance of
the evidence is against the claim, the benefit of the doubt
doctrine is not for application. See generally Gilbert v.
Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.
3d 1361 (Fed. Cir. 2001).
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
____________________________________________
R. F. WILLIAMS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board)
is the final decision for all issues addressed in the "Order" section
of the decision. The Board may also choose to remand an issue or
issues to the local VA office for additional development. If the
Board did this in your case, then a "Remand" section follows the
"Order." However, you cannot appeal an issue remanded to the local VA
office because a remand is not a final decision. The advice below on
how to appeal a claim applies only to issues that were allowed, denied,
or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need
to do anything. We will return your file to your local VA office to
implement the BVA's decision. However, if you are not satisfied with
the Board's decision on any or all of the issues allowed, denied, or
dismissed, you have the following options, which are listed in no
particular order of importance:
? Appeal to the United States Court of Appeals for
Veterans Claims (Court)
? File with the Board a motion for reconsideration of this
decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this
decision based on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
? Reopen your claim at the local VA office by submitting
new and material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the local VA
office. None of these things is mutually exclusive - you can do all
five things at the same time if you wish. However, if you file a
Notice of Appeal with the Court and a motion with the Board at the same
time, this may delay your case because of jurisdictional conflicts. If
you file a Notice of Appeal with the Court before you file a motion
with the BVA, the BVA will not be able to consider your motion without
the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days
from the date this decision was mailed to you (as shown on the first
page of this decision) to file a Notice of Appeal with the United
States Court of Appeals for Veterans Claims. If you also want to file
a motion for reconsideration or a motion to vacate, you will still have
time to appeal to the Court. As long as you file your motion(s) with
the Board within 120 days of the date this decision was mailed to you,
you will then have another 120 days from the date the BVA decides the
motion for reconsideration or the motion to vacate to appeal to the
Court. You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the
filing fee if payment would cause financial hardship), and other
matters covered by the Court's rules directly from the Court. You can
also get this information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you
must file your Notice of Appeal with the Court, not with the Board, or
any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing a
letter to the BVA stating why you believe that the BVA committed an
obvious error of fact or law in this decision, or stating that new and
material military service records have been discovered that apply to
your appeal. If the BVA has decided more than one issue, be sure to
tell us which issue(s) you want reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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